Jefferson Wire and Cable Corp.

1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Rela- tions Act, as amended , we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their membership in or activities on behalf of International Union of District 50, United Mine Workers of America, or of any other labor organization, or make threats of reprisal or promises of benefit because of such activity. WE WILL NOT announce or grant increased insurance or other benefits to our employees during the pendency of a question concerning representation. All our employees are free to become, remain , or refrain from becoming or remaining members of any labor organization. BORDEN CABINET CORPORATION, Employer. Dated ------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have an question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Room 2023, Federal Office Building, 550 Main Street , Cincinnati, Ohio 45202, Telephone -684-3627. Jefferson Wire and Cable Corp. and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases 1-CA-5064 and 1-RC-8306. June 24, 1966 DECISION AND ORDER On March 30, 1966, Trial Examiner Lowell Goerlich issued his Decision in the above-entitled consolidated proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also recommended that the election held on April 30, 1965, be set aside and the petition in Case 1-RC-8306 be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a supporting brief, and the General Counsel filed a brief in answer to the Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a- three-member panel [Chairman McCulloch and Members Brown and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the entire 159 NLRB No. 107. JEFFERSON WIRE AND CABLE CORP. 1385 record in this case including the Trial Examiner's Decision, the exceptions, and briefs, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. 1. The Trial Examiner found, and we agree, that Respondent vio- lated Section 8(a) (1) of the Act by Vice President Friedman's inter- rogation of employee Capuano, by instituting employee bereavement benefits during the Union's organizing campaign, and by the timing of its announcement of its contribution to its employee profit-sharing fund and sending individual allocation statements to employees 2 days before the election. We also agree with the Trial Examiner that the terms of the Respondent's profit-sharing plan, which fore- close participation by employees who became members of or are rep- resented by a labor organization, as well as declarations to this effect by Vice President Friedman at preelection meetings, tended to have a coercive effect upon employees. We find, therefore, that the afore- said terms and conduct constituted additional violations of Section 8 (a) (1) of the Act.2 2. Trial Examiner found, and we agree, that when the Union requested recognition and bargaining on March 8, it possessed valid authorization cards signed by a majority of employees in an appro- priate unit designating the Union as their bargaining agent.3 In view of Respondent's unfair labor practices and its interference with the election by its conduct with respect to its profit-sharing plan and the existence of the unlawful provisions of the plan as described above, during the critical period prior to the election, we agree with the Trial Examiner's conclusion, without adopting his rationale, that the Union's objections to the election have merit and should be sus- tained, and that Respondent's refusal to recognize and bargain with the Union on and after March 8,, was motivated not by a good-faith doubt of the Union's majority but by a desire to gain time in which to destroy the Union's majority status, and thereby violated Section 1 We are satisfied on the basis of the entire record that Respondent's contention that the Trial Examiner was biased is without merit. 2Dura Corporation, 156 NLRB 285 ; Melville Confections, Inc., 142 NLRB 1334, enfd. 327 F.2d 689 (C.A. 7), cert. denied 377 U.S. 933; Channel Master Corporation, 148 NLRB 1343. The Respondent contends , in its exceptions, that the Trial Examiner 's additional finding of unlawful interrogation by Stanley Johnson was erroneous because the record' does not establish that Johnson was a supervisor . We find it unnecessary to resolve this issue as such a finding would, in any event, be cumulative. 8 Member Brown agrees with the Trial Examiner that signed designation cards are the best evidence of the signatories ' intent, absent a showing of fraud or coercion. Dan Howard Mfg. Co . and Dan Howard Sportswear, Inc., 158 NLRB 805, footnote 5. In reaching this conclusion, Chairman McCulloch and Member Zagoria do not adopt such of the Trial Examiner's rationale as is inconsistent with the Board majority position as set forth in The Shelby Manufacturing Company, 155 NLRB 464, and cases cited therein and in the Trial Examiner's Decision herein. 1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8 (a) (5) and (1) of the Act.4 In addition, we agree with the Trial Examiner that the Respondent unilaterally granted wage increases on September 18, 1965, in violation of Section 8(a) (5) of the Act.5 Accordingly, as recommended by the Trial Examiner, we shall set aside the election, dismiss the petition, and order the Respondent to bargain with the Union. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Reletter the present paragraphs 1(b) through (d) as para- graphs 1(c) through (e), and insert the following as paragraph 1(b) : P (b) Restricting participation in any profit-sharing plan to employees who are not members of or represented by a labor organization." [2. Reletter the present paragraphs 2(a) through (c) as 2(b) through (d), and add the following as paragraph 2(a) : ,["(a) Amend article VI of its profit-sharing trust by eliminating therefrom that part which restricts participation to employees who are not members of or represented by a labor organization." [3. Add the following as the fourth and fifth indented paragraphs to the notice attached to the Trial Examiner's Decision : [WE WILL NOT restrict participation in any profit-sharing plan to employees who are not members of or represented by a labor organization. [WE WILL amend article VI of our profit-sharing trust by eliminating therefrom that part which restricts participation to employees who are not members of or represented by a labor organization.] 4Joy Salk Mills, Inc., 85 NLRB 1263, enfd . 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914 ; Bernet Foam Products Co., Inc., 146 NLRB 1277 ; Irving Air Chute Company, Inc., 149 NLRB 627 ; Aaron Brothers Company of California, 158 NLRB 1077. 6In view of our findings herein, we deem it unnecessary to determine whether the Re- spondent's extension of Christmas party invitations to production and maintenance em- ployees was also unlawful, as found by the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On a charge filed by International Brotherhood of Boilermakers , Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board , herein called the Board, on behalf of the Board by the Acting Regional Director for Region 1, on August 31 , 1965, issued an order consolidating cases, complaint and notice of hear- ing against Jefferson Wire and Cable Corp., the Respondent herein , alleging that the Respondent has engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended , herein called the Act. The Respondent answered on September 24, 1965 , denying it had engaged or was engaging in the unfair labor practices alleged. On November 12, 1965, the Regional Director for Region 1 filed an amendment to the complaint alleging that the Respondent had unilaterally changed existing JEFFERSON WIRE AND CABLE CORP 1387 wage rates, hours of employment, and other terms and conditions of employment in that it had granted shift differential pay to employees of the second and third shifts at its Worcester, Massachusetts, plant and had announced to its employees that the Respondent's annual Christmas party would thereafter be open to all -employees. The Respondent denied these allegations by answer to the amended complaint dated December 6, 1965. In the latter part of January 1965, the Union commenced an organizational campaign of the Respondent's employees by distributing handbills at entrances to the Respondent's Worcester, Massachusetts, premises. To certain of these hand- bills the Union attached blank union authorization cards 1 together with an enve- lope addressed to the Union. Through this method of organizing, the Union, by March 8, 1965, had received completed authorization cards from 29 of the Respondent's employees. On March 8, 1965, International Union Representative Vincent J. Curran visited the vice president of the Respondent, Michael Friedman, and requested recognition for the Union. Recognition was refused whereupon Curran immediately, on the same day, journeyed to the Board's offices in Boston, Massachusetts, and filed a petition for certification of representatives together with the 29 authorization cards. A Decision and Direction of Election was issued on April 6, 1965; an election was conducted on April 30, 1965. Out of 44 votes cast, 17 were for the Union and 18 2 were against the Union. Nine ballots were challenged .3 Objections to conduct affecting results of the election were filed on May 3, 1965, and a Supplemental Decision and notice of further hearing was issued by the Regional Director on June 9, 1965, and a Second Supplemental Decision and Notice of Hearing was issued by the Regional Director on June 16, 1965. The latter directed that a hearing be conducted to "ascertain the facts pertaining to objection 2 (the Employer's payments under the profit-sharing plan), pertaining to the paid leaves for death in employees' families and pertaining to the challenges." On August 31, 1965, the Acting Regional Director issued the order consolidating cases, Complaint and Notice of Hearing, in which Case 1-RC-8306 was consoli- dated with Case 1-CA-5064 "for hearing." The consolidated cases came on to be heard before Trial Examiner Lowell Goerlich on December 13, 14, 15, 16, and 17, 1965, at Worcester, Massachusetts. At the hearing, each party was afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, to argue orally upon the record, to submit proposed, findings of fact and conclusions of law, and to file briefs. All briefs have been reviewed and considered by me. The issues which have been submitted for consideration are: 1. Whether Stanley Johnson, Peter Rovan, and Joseph Pupecki are supervisors within the meaning of the Act. 1 The complete wording on the card was : AUTHORIZATION FOR REPRESENTATION (This Is Not an Application for Membership) International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO FILL IN ALL BLANKS DATE ---------- I, the undersigned employee of --------------------------------------------------------7-------------- Name of Company hereby select the above named Union as my collective bargaining agent Name of Employee ------------------------------------------------------ Home Address ( please print ) Street -------------------- City ------------- State ---------- ------------------------------- Phone - ----------------- ----------------------------------------- Signature 2 This number was increased to 19 by the Regional Director 's ruling that a challenged "No" vote was valid. 3 Eight ballots were challenged on the ground that they were cast by supervisors within the meaning of the Act. One ballot was challenged on the ground that it contained mark- ings which identified the voter. The Regional Director overruled the challenge to this ballot and held that it was a valid "No" vote. The Regional Director referred the other eight challenges to a hearing "to resolve the issue pertaining to the unit placement" of the challenged voters. During the hearing, the General Counsel and the Charging Party conceded that five of the eight challenged voters were nonsupervisory. The status of three employees, Stanley Johnson, Peter Rovan, and Joseph Pupecki was placed in issue. 1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Whether on March 8, 1965, the date upon which the Union demanded recog- nition, the Union represented an uncoerced majority of the Respondent 's employees for the purpose of collective bargaining in an appropriate unit. 3. Whether the Respondent interfered with , restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act by: (a) unlawful interrogations, (b) the grant and/or payment of "bereavement benefits" to employ- ees, (c) the contribution of a money payment to an Employees ' Profit-Sharing Trust and/or the announcement of the allocation and the allocation of profit- sharing benefits to employees during the pendency of a representation election proceeding. 4. Whether the Respondent unlawfully interfered with the representation election conducted on April 30, 1965. 5. Whether on March 8 , 1965, the Respondent did possess a doubt of such a kind as to relieve it of the obligation to recognize and bargain collectively with the Union. 6. Whether the Respondent violated Section 8(a)(5) of the Act by unilaterally changing existing wage rates , hours of employment, and other terms and conditions of employment in that on September 18, 1965, the Respondent granted a shift differential pay to employees of the second and third shifts and on September 15, 1965, the Respondent announced to its employees that the Respondent's annual Christmas party would thereafter be open to all employees. . Upon the whole record, and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Jefferson Wire and Cable Corp ., is and has been at all times material herein a corporation duly organized under and existing by virtue of the laws of the Commonwealth of Massachusetts and has maintained its principal office and place of business at 181 Greenwood Street in the city of Worcester, county of Worcester, and Commonwealth of Massachusetts . It is and has been engaged - at such location in the manufacture , sale, and distribution of insulated wire and cable and related products. Respondent in the course and conduct of its business causes and has caused at all times mentioned herein large quantities of raw materials used by it in the manufacture of insulated wire and cable to be purchased and transported in inter- state commerce from and throughout various States of the United States other than the Commonwealth of Massachusetts, and causes and has caused at all times herein mentioned substantial quantities of insulated wire and cable to be sold and transported from such plants in interstate commerce to States of the United States other than the Commonwealth of Massachusetts . The Respondent annually has received goods valued in excess of $50,000 at its principal place of business in Worcester, Massachusetts, from points located outside the Commonwealth of Massachusetts and, during the same period has shipped goods valued in excess of $50,000 from its principal place of business directly to points located outside the Commonwealth of Massachusetts. The Respondent admits and I find that the Respondent is now and has been at all times material herein, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION International Brotherhood of Boilermakers , Iron Shipbuilders , Blacksmiths, Forgers and Helper, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The supervisory status of Stanley Johnson, Peter Rovan, and Joseph Pupecki As of March 8, 1965, the Respondent employed 53 employees 4 in a unit com- posed of "all production and maintenance employees of the Employer engaged at. its Worchester [sic], Massachusetts, plant, including shipping room employees , but ex- * The parties so stipulated. JEFFERSON WIRE AND CABLE CORP. 1389 cluding office clerical employees, professional employees, g'Jards and supervisors as defined in the Act" including Stanley Johnson, Joseph Pupecki, and Peter Rovan whom the General Counsel and the Charging Party contend are supervisors within the meaning of the Act. Except for a few employees who work in the striping room or on ribbon winding machines, located in the cellar, the employees work in an open area on the main floor of the Respondent's Worcester plant. The employees are assigned to-five job classifications: extruder, spooler, braider, ship- per, striper, and maintenance man. According to Vice President Michael Fried- man, the only supervisors employed by the Respondent are Michael Friedman, Leo S. Boosahda, and Martin Fisher.5 Friedman testified that the Respondent operates with three shifts but "Nobody is the head of the shift." Friedman explained that the Respondent's establishment operates on an honor system.6 The first shift com- mences at 7 a.m. and ends at 3 p.m., the second shift runs from 3 to 11 p.m., and the third shift runs from 11 p.m. to 7 a.m. Thirty, fourteen, and eight employees work respectively on the first, second, and third shifts. Friedman referred to Pup- ecki and Rovan as group leaders or set up men and to Johnson as an expediter. Prior to a finding that Johnson, Pupecki, or Rovan are' supervisory employees within the meaning of the Act, there must be, of course, proof that they possess one of the authorities listed in Section 2(11) of the Act .7 Matthews & Co. v. N.L.R.B., 354 F.2d 432 (C.A. 8). "Moreover 2(11) `does not require the exercise of the power described for all of the employee's time.' It is the existence of the power which determines the classifl,ation." Id. at 2072. [Emphasis supplied.] Stanley Johnson. The General Counsel based his contention that Stanley John- son was a supervisor within the meaning of the Act upon evidence adduced as follows: Stanley Johnson described himself as an expediter. In elaborating upon his functions he testified that he "assigned new men to an older employee to be broken in on a job"; that he received wage raise requests from employees; that he con- veyed such requests to Friedman; that he "on occasion" mentioned to Friedman that "this man is a very good man"; that he reported to the employee whether the wage raise was granted; that he "told people to get back to work"; that he "told employees to clean up an area [he] felt was dirty and needed cleaning up"; that he spoke to people who were absent "pursuant to Friedman's instructions": that "based upon [his] list as to whom-what individuals worked overtime [he] would go to the individual who had less overtime and ask him if he wanted to work Saturdays" and that he discussed with Friedman the areas or departments to which a new employee should be assigned.8 5 It is not clear in the record whether Fisher acts as a supervisor over production and maintenance employees. 6 Friedman testified , "We have what we call an honor system. Each man is given a job and as long as he is performing the job that's it. I believe that people left without any- body on top of them do a better job." ? Section 2(11) of the Act defines a "supervisor" as, "any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 8 In his prehearing affidavit, verified by his testimony , Johnson deposed : As an expediter I schedule work for the extruders. If required I move work to the machines to run. I get my instructions by job cards and phone as to what orders we have to run. Mr. Friedman has asked me about the quality of an employee's work. He asked me how a man is doing-Mr. Friedman decides whether a man is to get a raise or not. I tell Mr. Friedman when I take a man and reassign him. I am hourly paid. On occasion, I have granted an employee permission for time off but then report it to Mr. Friedman . I have no opportunity to discipline employees. If an employee requires discipline in my opinion I report it to Mr. Friedman and he handles the discipline. On occasion when I need men for overtime and ask Mr. Fried- man what departments , I keep my own record on who works overtime and who doesn't. I try to spread out overtime according to my own records to keep it as even as possible. Mr. Friedman tells me what departments work overtime. 1 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson testified that sometime prior to the election , he called employees War- ren Snow and Clifford Snow separately into the production office and asked each "what he felt he would be gaining by a union being in the shop." In his prehear- ing affidavit Johnson deposed , "Mr. Friedman authorized me to speak to Warren and Clifford Snow in the production room." 9 Employee Warren Snow and Robert Bostrom testified that they asked Johnson for raises which they subsequently received . Employee Evelyn Pellerin testified that Johnson "tells you what to do in the morning." Employee Robert Bostrom said he took "orders" from Johnson . Bostrom also testified that Johnson laid out work, and assigned overtime . According to Bostrom there was no one superior to Johnson on the night shift. Bostrom referred "gripes" to Johnson. Employee James,'Capuaro testified that Johnson told him the order in which to, run production cards.1° Capuano also testified without contradiction that Johnson said that "he had let so many people go that it didn't even bother him anymore." Johnson also asked Capuano to work overtime 11 and on occasion changed his job. According to employee Robert LaFlash after he had been injured, he contacted Johnson who assigned him to another job. LaFlash quoted Friedman as saying if Johnson asked "the fellows to do anything they had to do it." iz . Employee Joseph Robert Cormier testified , "When I came in at nights I had a note waiting for me to let me know what job I had to do with Mr . Johnson's signature on the bottom." When Cormier was hired, Friedman told him that Johnson would "show him his job. Cormier further testified , "if I had any trouble or needed any information then Stanley would come." Cormier said that when he wanted to be excused from work or overtime he saw Johnson According to the statement submitted to the trustee for the Profit Sharing Trust (fiscal year, 3/31/64-3/31/65 ) only three employees received more wages than Johnson. Johnson received $8,474.94; Boosahda, $ 10,810; Fisher, $21 ,500 and Friedman , $43,200. Joseph Pupecki was next below Johnson with $7,734.73. Based upon the foregoing credited and for the most part uncontradicted testi- mony I find that Stanley Johnson was a supervisor within the meaning of Section 2(11) of the Act. Of controlling importance is the testimony that Johnson assigns work, transfers employees, assigns employees overtime, advises with General Man- ager Friedman concerning the work habits of employees , excuses employees from work, reports employees for disciplinary considerations, is approached by employ- ees for wage raises, informs employees of wage raises, receives "gripes" from, employees, has no, supervisor over him on the third shift, is paid , the fourth highest wage of all Respondent's employees, has issued directions to employees , was au- thorized by General Manager Friedman to speak to several employees about the Union, and was referred to by Friedman as the person whom an employee should obey. There is no evidence which establishes that Johnson did not perform the fore- going duties on March 8, 1965. Thus I find that on March 8 , 1965, and at all times thereafter Johnson was a supervisor within the meaning of Section 2(11) of the Act.13 B. The showing of majority interest The General Counsel submitted 29 "Authorization for Representation" cards, all of which were signed by the respective employee prior to.March 8 , 1965, and were valid on their faces. The 29 card signers were among the 53 employees (including Johnson, Pupecki, and Rovan ) who would have been eligible for the purpose of determining the majority status of the Union . Thus on March 8, 1965 , the Union held seemingly valid authorization cards for a majority of the employees even if Johnson, Pupecki, and Rovan were not excluded as supervisors . In its brief the 0 Johnson denied the truth of this statement . His denial is not credited. Referring to his affidavit Johnson said , "I do not believe he [Mr . Harvey, counsel for the General Counsel ] put words into my mouth." 10 The production card describes the particular job to be performed. 11 Warren Snow testified to the same effect. 12 This testimony stands uncontradicted in the record 13 In view of other findings and my recommendations, it is not deemed necessary to pass upon the supervisory status of Joseph Pupecki and Peter Rovan., JEFFERSON, WIRE AND CABLE CORP., 1391 Respondent cites reasons for which it contends that the cards of 13 of these employ- ees should not be counted.14 The Respondent contends that the cards of Monica Serwicki, Jules Bedard, and Charles Tudor should not be counted because they were mislead "by being told `practically everyone' . . . `everyone, most everybody signed' or you are `only one that didn't sign: " Monica Serwicki described the circumstances surrounding the signing of her card as follows: ". . somebody came up and asked me to sign and they said everybody else was signing and I signed it .... I know it was a young man .... He came up to me and asked me if I signed that everybody else is signing in the place and he say it wouldn't come to anything, I remember 'him saying that, it wouldn't come to anything. It is just that,they wanted my name on there, there were so many names that they wanted." She said the handwriting which appeared on the card "looked like" her handwriting. There is no proof that the "young man" whose identity was not established was a representative of the Union. Jules Bedard testified that he filled out and signed the card which was given to him in the plant by someone whose name he did not remember. According to Bedard this person said "they were going to have an election pretty soon." 15 Bedard read the card. Charles Tudor testified that employee Stepenovitch gave him a blank authoriza- tion card in the plant which he signed in Stepenovitch's presence "to get him off [his] back." 16 Tudor mailed the card to the Union on his way home from work. Later Tudor voluntarily visited the union hall seeking information. According to Tudor, Stepenovitch also said, "Get that card in . . Before they start for the election we got to get enough cards down there or there won't be any election." Tudor commented, "That didn't mean that I was signing for any union I realized it was the vote that counted." The Respondent also contends that the cards of Donald Whitney, Thomas Long, and John Demore should not be counted in that they were told "that the only purpose for the card was for an election." According to Donald Whitney, employee Capuano told him "that it was a card for the union and that would bring on the election," and that was the "only thing [Capuano] told [him] this card was for." Whitney voluntarily signed the card, filled in the blanks, and returned it to Capuano. Whitney read the card. The signing occurred in the plant. Thomas Long testified on direct examination that' he read the card, signed it, and mailed it to the Union. He further testified that nothing was said to him when he received the card. On cross-examination, Long testified: Q. Did anybody else tell you what the card was for? A. Yes. Q. Did they tell you it was for an election? A. Yes. Q. And that the only purpose,of the card was for an election? A. Yes. TRIAL EXAMINER: Tell us exactly what he said to you? The WITNESS: Just if I wanted to sign it. TRIAL EXAMINER: What else did he say? The WITNESS: That was all. Q. (By Mr. KiRLE.) Didn't he tell you that it was for an election, only for an election? A. Yes. Long could not remember who gave him the card. 14 The Respondent in Its "Statement of Facts" mentions three other employees , Evelyn Pellerin , Janet Pellerin, and Walter Burnham who are not referred to in its "Argument" I have considered the authorization cards signed by these employees and for the reasons stated infra (which are also applicable to these cards ) I find that these cards should be counted. 15 In later testimony Bedard said , "He said, sign my name, that's all." 1e The Respondent cites such circumstance as an additional reason for invalidating Tudor's card. 1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD John Demore received a blank card from employee James Capuano in the plant. Demore testified on cross-examination: Q. He said it was to get an election? A. To get an election.17 He further testified that the only reason he signed the card was to get an election. Demore stated he did not recall reading the card which he signed in the "bathroom of the shop," but he "was under the impression it was to get a count or to get a vote that it wasn't for or against it was to get a vote." The Respondent further contends that the card of John Raddi should not be counted because he "couldn't read or understand English very much and couldn't read what was on the card and doesn't know what the card was for at all." John Raddi, an Italian, testified that he does not read English. According to Raddi employee Capuano read his authorization card to him in English before he signed it. Raddi said, "He [Capuano] talked to me, he was explaining to me about the Union while I signed the card." Raddi testified in English.18 The Respondent finally contends that the cards of George Gallant, Charles Pu- sac, Mary Sheard, Chester Reardon, Joseph Stepenovitch, and Wayne Kosky should not be counted because the "only reason and understanding for signing was that it was to be for an election." George Gallant signed his authorization card at home after he had read it. He was not told by anybody that the card was for an election although he "understood it was for an election." Charles Pusac testified that he signed and filled out a card which had been handed to him as he came to work. Nothing was said to him when he was handed the card. Pusac testified on cross-examination: Q. (By Mr. KIRLE.) Was the only reason you signed to get an election? A. Yes.19 Mary Sheard testified that she read her card before she signed it. It was handed to her as she entered the plant along with "a piece of paper." Nothing was said to her as she received the card. About a week later she signed it. Sheard further testified on cross-examination: Q. (By Mr. KJRLE.) Did you know it was for a union election? A. Yes, . . Q. (By Mr. KIRLE.) . . . the only reason you signed it was because of the union election? A. I signed it because I thought I was signing for an election, what else would I be signing for? Chester Reardon testified that he read his card before he signed it. Reardon testified on cross-examination: Q. And when you were given the card by whoever gave you the card did he tell you it was for an election? A. Yes, he said you could sign it whatever you want to do, what you want.20 17 Later Demore testified in redirect examination : He said there was-it was going to be strictly confidential and it didn't mean anything for an election, it just meant to get the election to come to the shop to get an election. He didn't say for or against, he was saying it was just to get an election in. is There seems little doubt that Raddi understood the purpose of the card. Raddi's card shall be counted as valid. 19 While I permitted this kind of questioning I commented : I am going to allow it to stand and in deciding this case it may be that I shall con- sider it immaterial. ' 20 Later on redirect examination Reardon testified : No, there was nothing said be just said if I wanted one and I said , "I'll take one." He said, "Are you going to sign it"? and I said, "I will let you know later" ... . Q. That is all he said? A. That's right. Q. He didn't say it was to get a Union in the plant? - A. I knew what it was for, sure I knew what it was for. If you get enough signa- tures there would be an election. Q. Did he say that? A. No, be did not. JEFFERSON WIRE AND CABLE CORP. 1393 Q. Did he tell you it was for an election? A. He did, yes. Q. And the reason you signed the card was to get a union election? The WITNESS: -That was my reason, for signing .it to have ^an election held, yes. Q. (By Mr. KIRLE.) That was the only reason you signed it? A. That's right, sir. Joseph Stepenovitch testified that he voluntarily signed the union card and mailed it to the Union because he "wanted the Union in." He further testified on cross- examination: A. I remember we signed that to get the union in the place. Q. To get the union in? A. I think the card was signed for that, yes. Q. It was for the purpose of getting the Union in through election? A. That's right. Q. Is that the only reason you signed the card? A. That's right. Wayne Kosky testified on cross-examination that the only reason he signed the card was to get an election. Kosky read the card before he signed it. Kosky heard Union Representative Curran say that Curran "wanted to bring them to Mr. Friedman and ask him if he would recognize the union." Curran testified credibly that he discussed the Union prior to March 8, 1965, with only about eight employees including Warren and Clifford Snow, Capuano and Stepenovitch. Curran told these employees that when he- received cards signed by "fifty-one per cent [he] was going to make a demand on Mr. Friedman for representation rights." 21 He also told them that in the event Friedman refused to recognize the Union he would immediately go to the Board and file in order that "there would be no delay in the proof that on the date of the demand -the [the union] had the majority." Curran had no organizing committee set up nor did he have any "designated agents assisting" him. James Capuano "unknown" to him voluntarily assisted him. Curran gave no blank 'authorization cards to em- ployees for the purpose of their solicitation of signers. There is no evidence that any card signer at any time revoked his authorization. Absent a showing of fraud or coercion the signed designation cards are the best evidence of the signatories' intent.22 The Respondent does not contend nor is there any evidence that any card signer was coerced into signing a designation. All signatories voluntarily attached their signatures to unequivocal designations Furthermore the printed matter on the card made no reference to an intended use for representation election purposes. In fact, the word "election" does not appear on the card. Where a union authorization card unequivocally. designates the Union as the signer's bargaining agent and no reference thereon is made at all to a repre- sentation, election-, or the word "election", used, a rational inference may not be drawn that the • signer did not intend to "select", the Union as his "collective bar- gaining agent" as stated on the card but on the contrary intended "only" to -sign the card to "get an election." Under these circumstances it must be conclusively presumed that the employee knew what he, was doing 23 The non sequitur is even more pronounced where the employee admits' reading the card before he signs it. I find' that 'on March ,8, .1965, the. Union had been designated as the collective- bargaining agent for 29 employees. ' 'In reaching this finding, I am not unmindful of 21 This testimony' concurs with that' of employee Kosky who testified- that Curran had said that he' "wanted'to:bring them. to Mm Friedman,and ask him if, lie would recognize the union." I 19 See footnote 4, The Shelby Manufacturing. Company, 155 NLRB 464, the concuiiine remarks of Board Member .Brown., o •• ) v "+23 The Court'said in.Jae. H. Matthews & Co.,v..N.L.R.B , supra:, Thus, the Board's conclusion is correct-that "[t]he very act of signing an author- ization card by an employee, absent real proof of fraud or deceit, calls for a finding that the employee knew what he was doing." 243-084-67-vol. 159-89 1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Board's rule that a designation card may be invalidated if a union represents that the only purpose of the card is to obtain an election . See The Shelby Manu- facturing Co., supra; Conren, Inc., d/bla Great Scot Super Market, 156 NLRB 592; 24 Cumberland Shoe Corporation , 144 NLRB 1268 ; Engineers & Fabricators, Inc., 156 NLRB 919. But the record is barren of any credible evidence that the Union made such a representation . Moreover the language of the card itself re- futes such an inference Furthermore , "subjective evidence 25 as to intent of the signers is irrelevant." Bauer Welding & Metal Fabricators, Inc., 154 NLRB 954, footnote 1. Moreover, an employee's thoughts or afterthoughts as to why he signed a union card , and what he thought that the card meant, cannot negate the overt action of having signed a card designating the Union as bargaining agent. Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 743 (C.A.D.C.), cert. denied 341 U.S. 914. The defense of misrepresentation as urged by the Respondent cannot be estab- lished by testimony which fails to identify the person making the alleged misrepre- sentation or by proof of employee impressions gained through informal employee discussions. See Hamburg Shirt Corporation , 156 NLRB 511. Nor may mis- representation be established by statements of persons other than agents of the Union 26 Jas. H. Matthews & Co v. N.L R.B., supra. Moreover, when an em- ployee fails to repudiate his signature on a union authorization card, it strengthens a finding of his intent to select the bargaining agent whose name appears on the card . Indeed, where an employee has taken no action to revoke his union author- ization and months later appears for testimony after the Union has lost the election, his testimony to the effect that he was induced to sign the card by representations which are at odds with the unequivocal language of the card without other cor- roborative evidence carries little probative weight. It seems highly unlikely that a reasonable man would sign a union authorization card only because it was repre- sented to him that the only purpose of the card was to "get an election" when the only purpose of the card as expressed on the card was the unequivocal selec- tion of the Union as the bargaining representative . His testimony at odds with clear language of the card casts doubt upon his veracity . For this reason I have carefully analyzed the demeanor of each witness , most of whom testified under obvious stress , and has resolved credibility in favor of the clear language of the -card as expressing the intent of the signer. - Thus, since the Union on March 8 , 1965, had obtained valid authorization cards signed by a majority of the employees in an appropriate-unit (see infra) desig- nating the Union as their bargaining agent the Respondent Employer violated Section 8(a)(5) of the Act if, absent a good-faith doubt of the Union's majority status, it refused to recognize and bargain with the Union . Union Representative Curran spoke the truth , in fact, when he represented to the Respondent that the Union represented a majority of its employees on March 8, 1965. C. The refusal to bargain 1. Union organization and the demand for bargaining Vice President Friedman testified that the Steel Workers organized the Respond- ent's employees in 1962 but failed to win the representation election . According 24 In the Conren case employees were also urged to sign "because of the benefits that might be obtained through 'union representation ." The Board said: Absent clear evidence of misrepresentation, we are not willing to permit subjective testimony of the signers as to what their intent might have been to contradict the clear designations expressed in cards they signed. 25 In Peterson Brothers, Inc., 144 NLRB 679, 682, it was said: If the cards are to be voided on the ground that the employees were mislead into believing the card would be used for a different or more limited purpose, this must be done on the basis of what the employees were told, not on the basis of their sub- jective state of mind when they signed the cards. 26 There is no evidence that Curran, the only union representative , made any misrepre- sentations as to the purpose of the authorization cards. The Respondent does not contend to the contrary. JEFFERSON WIRE AND CABLE CORP. 1395 to employee James Capuano the Steel Workers again tried to organize the Re- spondent's employees in 1964. Friedman testified that he knew nothing of this campaign. On February 19, 1965, Vincent Curran, International Representative for the International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, the Charging Party herein, began organizing the Respondent's employees. The first organizational contact was made by distributing a handbill or flyer on February 19, 1965, at the entrances of the Respondent's plant To this handbill as well as to the next two distributed were attached blank union authorization cards together with self-addressed return enve- lopes. By this method the Union had received the 29 executed authorization cards from the Respondent's employees prior to March 8, 1965. On that date Curran, accompanied by Bedros Dostoomian, International organizer for the Sheet Metal Workers, visited Friedman for the purpose of demanding bargaining rights for the Union. Dostoomian describes the incident as follows: [Curran] said that a large majority or a substantial majority of your employ- ees have authoi ized the Boilermakers to represent them for the purpose of collective bargaining regarding hours of work, wages, working conditions and other conditions of employment . . . . Will you recognize us? . . . And Mr. Friedman said no and [Curran] . . . said `Would you give us a reason why you say no'? and Mr. Friedman then said, `Well, I feel we don't need a union here, we can do as much foi these employees as your union can' [Curran] said, `Do you have any doubt that I represent a majority of your employees'? and Mr. Friedman said, `Well, you say you have a majority and if you say it I have no doubt.' Then [Curran] was asking Mr. Friedman if he would agree to have a rabbi, minister or priest examine the cards for their validity and he said, `There is no need of examining the cards' or something to that effect. Curran's testimony was substantially the same as Dostoomian's testimony. Cur- ran quoted Friedman as responding to Curran's suggestion of a card check by "a rabbi, a Minister or Priest," "there is no need for 'that, you already said you had a majority." Friedman's version of the conversation differed in that Friedman testified that he answered Curran's demand for union representation by stating that he "did not believe that they [the Union] represented a majority of [the] people" and that they did "not believe [the] people wanted a union in the place." He told "Mr. Curran he should take his business to Boston to the NLRB." Friedman denied that Curran had suggested a card check. Friedman explained that he had referred Curran to the N.L.R.B. "because in the first election we had with the Steel Workers the same thing happened, they claimed a majority and later on I found out they didn't so why-then I.knew they had filed it in Boston with the NLRB and that's why I told Mr. Curran that." Friedman, on cross- examination, noted in rejecting Curran's majority claims that he "only had past experience to go on" and had not talked to any employees., When asked whether he was interested in whether Curran had enough cards, Friedman testified, "I wasn't interested in anything he had to say .... Not the least bit interested , . I wasn't interested in Mr. Curran in the least." Friedman said that he based his belief that the Respondent's employees did not want a union upon "knowledge. of my people I suppose." He denied that he had discussed the Union with the employees.27 Thus the testimony of Curran and Dostoomian in important aspects directly conflicts with that of Friedman. I have resolved such conflict by crediting the testimony of Curran and Dostoomian. Curran and Dostoomian appeared by demeanor to be forth-right, trustworthy, and truthful witnesses. Moreover, Dos- toomian was less involved in the outcome of the litigation than either Friedman or m At the time of the Curran-Friedman meeting, Friedman had not as yet retained an attorney. -1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Curran. On the other hand, Friedman's testimony was evasive,28 contradictory 29 and lacked those attributes which disassociated it with partisan purpose. Another reason for crediting Curran and Dostoomian in respect to their version is that some of the remarks- attributed to Friedman were reiterated by Friedman during the election, campaign. For example, Friedman was quoted by Dostoomian as saying, "we don't need a union, we can do as much for these employees as your union can." In the April 28 letter, Friedman wrote, " . we have pointed out in PLAIN FACTS why we believe you don't need this union, and just how we feel about the Union." In his letter of April 19, 1965; he wrote, ". . . place you confidence in the company rather than the outside union representatives," and in his letter of April 28, 1965, "Only the company can guarantee you job security." Since Friedman's later communications disclose that these same thoughts which were expressed to Curran and Dostoomian were again published, it is reasonable to believe that Friedman possessed and expressed them also on March 8, 1965. Finally Friedman's demeanor was not conducive to a favorable credibility finding3e 2. The respondent's alleged good-faith doubt on March 8, 1965 I find that the Respondent's refusal to recognize and bargain with the Union on March 8, 1965, was not grounded upon a good-faith doubt of the Union's majority 28 An example of Friedman' s evasiveness and equivocation is illustrated in the following series of questions and answers. Q. (By Mr. HARVEY.) These meetings [Respondent's preelection meeting of em- ployees] were held prior to the election In order to win the men over to the voting against the union, weren't they 9 A. These meetings were held to present my side of the story. Q. And your side of the story was to vote against the union, Isn't that right? A. My side of the story was to present Jefferson Wire & Cable's achievements. Q. And in presenting the achievements you intended the employees in viewing these achievements to vote against the Union. A. I didn't Intend anything. I always told them they could vote any way they wanted as long as they voted. Q Now, Mr. Friedman are you telling us that you never told the employees to vote no in the election? A. Well, I sent a letter out and we told employees to vote no in the election. Q. You wanted them to vote against the Union? A. We sent a letter and told them to vote no. In the letter dated April 19, 1965, Friedman wrote, "I hope that when the times comes you place your confidence in the Company rather than in the outside representatives that you don't really know, and that you will vote against the union." On April 23, 1965, Fried- man wrote the employees, "Your obligation is to yourself and your family. You will fulfill the obligation by VOTING 'NO' on Friday, April 30, 1965." Again on April 28 Friedman wrote "YOUR VOTE MAY DECIDE THE ELECTION. BE'SURE TO VOTE . NO., Q. The'letter represented your feelings as Vice President, didn't [sic]' Sir? The WITNESS : I will say no, it might not represent my feeling as an individual. Q. (By Mr. HARVEY.) Are you telling us,' sir, you didn't care If they voted for for the Union. A. I always told them to vote any ways they chose as long as they vote. TRIAL EXAMINER : Let me ask Mr. Friedman a question please. Did the Company have a-different policy as to its,preference than you as an Individual did? The WITNESS : No, the company has no policy or preference whatsoever; the.company had no policy in regards to the union., . 20 Friedman responded to the question "You never realized that your, plant was being organized before March 8, by the Union?',,"I, didn't know it was being organized." Fried- man further testified that he first, realized that the. plant was being organized "[w]hen Mr Curran came up and saw [him] on March 8th." His later testimon'revealed, never- theless, that prior to March* 8'(it could have been in February), he saw handbills in the shop, read them, and knew which union was involved in, 30 In this respect I observed Friedman to be instinctively honest, but beset liy antagonistic stimuli while cast in the role of witness for the Respondent. For example Friedman was asked whether his letter In which he urged employees to vote "No" "represented [his] feelings as Vice-President." He replied, "I will say no, it might not represent, my feeling as an Individual." I consider that the remarks attributed to Friedman by Curran and Dostoomian were an instinctively honest response to a somewhat unexpected confrontation. JEFFERSON WIRE AND CABLE CORP. 1397 status and that on such date and thereafter the Respondent violated Section 8(a) (5) of the Act. Of controlling importance in reaching this finding is the fact that when Friedman was confronted with the Union 's demand he expressed no doubt that the Union represented a majority of the Respondent's' employees and for such reason rejected the Union's offer to prove its claimed majority. Where a doubt does not exist, a force a defense of good-faith doubt is lacking in merit and is wholly superfluous . Since Union Representative Curran on March 8, 1965, held in hand "convincing evidence of majority support" which the Respondent failed to challenge because it expressed no doubt as to the Union 's majority status, the Respondent's obligation to bargain arose. "An employer is under a duty to bargain as soon as the union representative presents convincing evidence of majority support." N.L.R.B. v. Dahlstrom Metallic Door Company , 112 F.2d 756, 757 (C.A. 2). Moreover, Friedman's postrationalization of an alleged doubt, if credited, is lacking in necessary probative weight to sustain such a doubt.31 Friedman's doubt was attributed to his belief that the Respondent's employees did not want a union and to the fact that the Steel Workers who had claimed a majority had failed to gain a majority in the election ; however, he conceded that he had talked to no employee; his belief that the employees did not want a union was explained, "Knowledge of my people I suppose." (Emphasis supplied .) In view of Friedman's knowledge of the Union's organizational activities and the claims made by the Union of majority status the alleged sources of Friedman 's doubt take on the character of afterthoughts rather than actual circumstance . Thus, even though Friedman is credited , the Respondent's alleged doubt, bottomed on conjecture and surmise, is no doubt at all. Nevertheless , assuming arguendo that doubt as to the Union's majority status has been established , the Respondent has not shown a "good faith" doubt. "Good faith" doubt stems from the sincere conviction that the Union does not represent a majority of an employer's employees . It fails as a defense to a refusal to bargain if it is accompanied by a rejection of the principles of collective bargaining or is utilized as an excuse to gain time in which to defeat a union. These factors are persuasive of a finding that on March 8, 1965, the Respondent's refusal to recognize and bargain with the Union was not grounded on a "good faith" doubt as to the Union's majority status: Friedman's expressed reasons for refusing to recognize the Union which depict a rejection of the principles of collective bargaining, Friedman's tacit admission that the Union represented a majority of the Respondent's employees , Friedman's rejection of a card check because "[t ] here was no need for that, you already said you had a majority," Friedman's attitude as expressed in his testimony, "I wasn't interested in anything he [Curran] had to say . . . . Not the least bit interested . . . . I wasn't interested in Mr. Curran in the least," 32 and Friedman's failure to explain in his testimony any acceptable reason in the light of the credible testimony for a good -faith doubt as to the Union's majority status. As noted, implicit in the Respondent 's refusal to recognize the Union is the Respondent's rejection of the principles of collective bargaining . That such was the Respondent's persuasion is manifested by Friedman's subsequent communica- tions to his employees during the election campaign . Friedman- testified that he told the employees that he "didn't think this union had a place in [the Respond- ent's] business . " 33 Friedman's subsequent conduct in campaigning against the Union is proof of Friedman's dedication to the proposition that the Respondent was entitled to a respite from its statutory duty to bargain in order to engage in an antiunion campaign or as expressed by Friedman "to present my side of the story." In this the Respondent not only disclosed an antipathy toward the institu- tion of collective bargaining but breached the statute , for an employer may not 81 "Doubt" is defined: "Uncertainty of mind ; the absence of a settled opinion or con- viction ; the attitude of mind toward the acceptance of or belief in a proposition, theory, or statement, in which the judgment is not at rest but inclines alternately to either side . An equipoise of the mind arising from an equality of contrary reasons .. . . Black's Law Dictionary, Fourth Edition. 88 Friedman's admitted attitude depicted a mind closed to a good-faith consideration of the Union's claim that the showing of majority interest by authorization cards entitled it to representation of the Respondent 's employees. Sa Supervisor Johnson testified that Friedman, told employees "he didn't think a union would be good for a plant this size." 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insist upon its own terms (in this case an election) for the showing of majority interest. "An employer is under a duty to bargain as soon as the Union repre- sentative presents convincing evidence of majority support." N.L.R.B. v. Dahl- strom Metallic Door Co., supra. There can be no doubt that the 29 valid union authorization cards which Curran held in his hands on March 8, 1965, were "con- vincing evidence, of majority support." Moreover, "[t]here is no absolute right vested in an employer to demand an election." N L.R.B. v. Trim fit of California, Inc., 211 F.2d 206, 209 (C.A. 9); accord N.L.R.B. v. Nelson Manufacturing Com- pany, 326 F.2d 397, 399 (C.A. 6).34 "The Act is clear in intent ... that election and certification proceedings are not the only method of determining majority representa- tion . . Matter of L. B. Hartz Stores, 71 NLRB 848, 871; IOB v. Los Angeles Brewing Co., 183 F.2d 398, 405 (C.A. 9). Nor does the statute require that a find- ing of lack of good-faith doubt as to the Union's majority status be buttressed by a finding of contemptuous unlawful conduct 35 ". . . an employer's bad faith (in this respect) may also be demonstrated by a course of conduct which does not constitute an independent unfair labor practice." Jern Mfg., Inc., 156 NLRB 643. In George Groh and Sons, 141 NLRB 931, 939, it was stated under circumstances where there were no independent violations of the Act: it does not perforce follow that a finding of such unlawful conduct is the sine qua non to a rejection of a good-faith defense. While accompanying unlawful conduct may render more discernible an unlawful motive, its absence is but a factor, and not a preclusive one, to be weighed in a "discriminating analysis and appraisal of all the relevant evidence." The absence of good faith, then, may be manifested as well by attitudes and conduct demonstrating a rejection of the collective-bargaining concept as by more overt, readily discernible Section 8(a)(1) and 8(a)(3) conduct potentially more imme- diately destructive of the Union's majority status. The evidence is convincing that on March 8, 1965, Friedman's response to the Union's bargaining demand did not emerge from a good-faith doubt as to the Union's majority status but was bottomed upon a desire to bar the Union fiom the Respondent's plant and to avoid the acceptance of collective bargaining as the vehicle for expression of the Respondent's employees. As summarized by employee Robert Bostrom . . the gist [of Friedman's speeches was] he [Fried- man] didn't want the union that was about it." Lack of good faith was also demonstrated in the Respondent's failure to engage in any effort to verify the Union's majority claims evinced by its position that it "wasn't interested in anything [the union representative] had to say." On this subject the court said in Matthews & Co. V. N.L.R.B., supra. Where, as in this case, the union had proof of its majority status readily available and [petitioner] chose not to learn the facts, it "took the chance of what they might be." On March 8, 1965, by refusing to recognize and bargain with the Union, the Respondent violated Section 8(a)(1) and (5) of the Act. It is abundantly clear that the Respondent failed and refused to "bargain collectively with the representa- tives" which were "designated or selected for the purposes of collective bargaining by a majority of the employees in a unit appropriate (see infra) for such pur- poses." (See Sections 8(a) (5) and 9(a) of the Act.) 3. The appropriate unit On March 8, 1965, the Union filed a petition for an election. After hearing thereon the Regional Director for Region 1 directed an election in the unit com- posed of All production and maintenance employees of the Employer engaged at its Worcester, Massachusetts, plant, including shipping room employees, but excluding office clerical employees, guards and supervisors as defined in the Act. 341n United Butchers Abattoir, Inc., 123 NLRB 946, 957, the Board said, "The right of an employer to insist upon a Board-directed election is not absolute." Stated another way the Board recently said in Metropolitan Life Insurance Company, 156 NLRB 1408: A representative proceeding is not a prerequisite to the validity of a bargaining order. 35 As found, infra, the'Respondent did engage in contemporaneous unlawful conduct by instituting and implementing a bereavement pay policy, the coercive effect of which persisted unabated on March 8, 1965. JEFFERSON WIRE AND CABLE CORP. 1399- The Respondent in its answer denied that such unit constituted a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. There having been offered no competent proof that this unit is an inappro- priate unit, I find, as did lne Regional Director, that the above unit is an appro- priate unit for the purposes of collective bargaining. D. Alleged violation of Section 8(a) (1) of the Act 1. Interrogations Stanley Johnson has been found to be a supervisor within the meaning of the Act. Shortly before March 8, 1965, Johnson called Warren Snow to the production office. Johnson according to his testimony asked Snow "what he felt he would be gaining by a union being in the shop." Snow answered, "possibly a chance for more benefits." Snow also mentioned the bereavement pay 36 with a comment that "nothing ever actually came of it." Johnson commented that "evidently they must have forgotten about it." 37 Johnson also mentioned he had been in "some unions" and "personally never actually gained anything from it," and that he "didn't care for unions." Johnson told Snow that he had heard a union was organizing the plant Johnson reported the Snow conversation to Friedman within 30 minutes and sometime later, in the same day, Johnson told Warren and Clifford Snow 38 they would receive bereavement pay retroactively. According to Johnson he also sum- moned Clifford Snow into the production office on the same day and asked him "what he felt would be gained by a union or what the men felt they would gain by having a union in the shop " Friedman "authorized [Johnson] to speak to Warren and Clifford Snow." 39 Friedman's interest in delving for the reasons which were motivating the Respond- ent's employees to seek union representation is also apparent from Friedman's con- versation with employee Capuano. Capuano testified without contradiction that early in March 1965 (prior to March 8) he was called to Friedman's office. Fried- man asked him "why he thought the people wanted a union" and "what they thought it could do for them." Friedman also told Capuano that "he knew who voted for the union and he had not released anybody or let them go " Both Johnson's conversation with the Snow brothers and Friedman's conversa- tion 40 with employee Capuano served no legitimate employer purpose but were initiated in order that the Respondent could elicit important information most use- ful to it in formulating a program whereby it could draw its employees away from union affection by the bestowal of benefits 41 That this was the purpose is unmis- takable in that bereavement pay, mentioned by Warren Snow, was immediately made an actuality. The conduct of Johnson and Friedman detailed above was of such a character as to reasonably tend to restrain or interfere with employees in the exercise of their rights guaranteed by' Section 7 of the Act and was in violation of Section 8(a)(1) of the Act. 2. Bereavement pay According to Friedman , about the middle of 1964 at an employees' meeting Warren Snow brought up the question of bereavement pay. Snow asked what would be done about leave when somebody dies in the family . Friedman responded 36 Bereavement pay was first mentioned by Snow at an employees' meeting sometime in the middle of 1964. See infra. 97 Snow testified that Johnson asked him if he "thought of any ways-any other benefits that could be added that would help the people," whereupon Snow mentioned the bereave- ment pay. In this respect Snow's testimony is,credited. Is Clifford Snow was Warren Snow's brother. zD This finding is based upon a statement appearing in Johnson 's prehearing affidavit which Johnson denied. Johnson's denial is not credited. Johnson's explanation for meeting with the Snows , which is not credited,, was, "Well, I felt that I wanted to know myself why the fellows, the men in the shop wanted a union . . . 40 Friedman's remarks to Capuano also tended to create an impression of surveillance in that Friedman told Capuano that "he knew who voted for the union." 41 "Interference is no less interference because it is accomplished through allurements rather than coercion ." N.L.R.B. v. Bailey Company ' (East Side Branch ), 180 F 2d 278, 279 (C.A. 6). 1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was the first time he had been faced with the question, that he would inves- tigate it and inquire what the Respondent's competitors were doing. He indicated that the Respondent would do the same. Shortly before March 8, 1965, Warren Snow, in response to Supervisor Johnson's question as to why he wanted a union, brought up the subject of bereavement pay again. Johnson immediately reported Snow's remarks to Friedman. Friedman is quoted by Johnson as saying, "I am sorry, I just happened to forget about it." Later that same day a notice announcing bereavement pay was posted. Friedman testified that when Johnson brought to his attention that he had prom- ised bereavement pay, he directed his secretary to check with the Respondent's Worcester competitors and find out the "standard rule or procedure ... in case of immediate death in the family." His secretary reported that the competitors who were contacted granted 3 days with pay for death in the immediate family. There- upon Friedman directed his secretary to type up and post a notice "to this effect and make it retroactive to include the Snow brothers." Warren Snow testified that the notice did not cover his particular situation 42 whereupon he and his brother immediately "squaked" to Johnson. About 10 min- utes later Johnson said that they would receive the retroactive pay 43 Warren Snow's bereavement pay was received by check dated March 10, 1965. The pay- roll period covered by the check ended on March 6, 1965. Friedman explained, ". . . I had no other reason to make this notice retroactive but for the Snows because I promised them and once I promise something I usually try to keep my promise." 44 On April 21, 1965 (9 days prior to the election), employee Capuano received 3 days' bereavement pay for the death of his father on April 12, 1965. On the basis of the foregoing testimony I find that the institution and payment of bereavement pay was in direct response to employee Snow's disclosure as to why the employees wanted a union, and was for the purpose of discouraging union activ- ity which was occurring among the Respondent's employees. Friedman's involve- ment, the dispatch with which the bereavement pay was instituted and its retro- active application clearly depicts the Respondent's intent to use bereavement pay as a medium for demonstrating to its employees that they did not need a union, a thought which was echoed time and again throughout the Respondent's antiunion campaign. The Respondent's conduct above detailed was a means by which the Respondent sought to entice its employees away from the Union. Since the adop- tion, announcement, and the retroactive application of bereavement pay was "arranged by Respondent to dissuade its employees from union activity," the Respondent thereby violated Section 8(a)(1) of the Act. See Belts Baking Com- pany, 155 NLRB 1313. Moreover, the first payment of bereavement benefits occurring after March 8, 1965, and a continuation of the payments of such benefits during the critical elec- tion campaign period cannot be disassociated from the coercive impact upon the Respondent's employees caused by the institution and announcement of bereave- ment pay shortly before March 8, 1965. Implicit in such payments was the per- sistent reminder that the Respondent's employees did not need a union, for as stated by the Supreme Court in N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, the employees were not likely to miss the "inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged." Since the coercive attributes of the bereavement pay policy had not been abated but on the contrary were accentuated and escalated by the payment of bereavement benefits during the critical period, an atmosphere prevailed through the fault of the Respondent which was incompatible with the employees' freedom of choice of a bargaining representative and interfered with the exercise of the rights of the Respondent's employees guaranteed under Section 42 Snow's mother had died in May 1964. The notice provided for bereavement pay retroactive to June 1964. 43 Snow's testimony in this respect is credited. "According to Friedman's earlier testimony he had not definitely promised bereavement pay to the Snow brothers. He testified, "I answered at that time that it was the first time I was faced with such a situation and I did not know, we never had to cope with it and I will investigate and I will inquire what our competitors, are doing and we will do the same ,thing." Had the Respondent's competitors not been granting bereavement pay under Friedman's representation the Respondent's employees would have received none. JEFFERSON WIRE AND CABLE CORP. 1401 7 of the Act, and was in violation of Section 8(a)( I) of the Act. , Under these circumstances the Respondent's payment of bereavement benefits during the critical period constituted interference with the election held on April 30, 1965. 3. The Respondent's profit-sharing contribution , for the fiscal year ending March 31, 1965 Between the date of filing the petition for the election on March 8 , 1965, and the election which was conducted on April 30, 1965, both parties sought to present their views to the Respondent's employees. The Respondent addressed three letters to its employees dated April 19, 23 , and 28, 1965, and on April 28 sent certain of its employees an individual statement of their share in the Jefferson Wire and Cable Corporation Employees' Profit-Sharing Fund which had been established in April 1964. (See infra.) The Respondent also held meetings with small groups of employees and a gen- eral meeting 2 days before the election on the Respondent's premises . In its letters and at the meeting 45 the Respondent displayed a strong appetency to defeat the Union. Among other things the employees were told to accept the status quo and place their "confidence in the Company." 46 The Respondent pointed out that a union contract could not guarantee job security 47 and that the "sole survival" of the Respondent's business depended upon "flexibility" which would be lost if the Union prevailed.48 The Respondent reminded the employees that there was no need 49 for a union and that the Union had no "place in [the Respondent 's] busi- ness." 50 The Respondent foretold of "chaos and confusion" which would come to pass if the Union became the bargaining agent 51 Finally in its April 28, 1965, letter the Respondent admonished its employees: Remember this Union can guarantee you nothing but the obligation to pay dues, assessments , and fines. Only the Company can guarantee you job security. In this atmosphere fraught with union antagonism , and almost upon the eve of the election, the Respondent transmitted to certain of its employees an individual In its letters the Respondent urged the employees to vote against the Union, remind- ing them that they would be fulfilling their obligation to themselves and their families best "by VOTING 'NO' on Friday , April 30, 1905." According to employee Capuano, who is credited in this respect , Friedman advised the employees , "I want everybody to vote because I do not want the union to win by default." Friedman wrote in the April 19, 1965 , letter : I hope that when the times comes , you will place your confidence in the Company rather than in outside union representatives that you don 't really know , and that you will vote against the union . . . . You have REAL SECURITY . . . the kind that never can come from outside people who are only interested in the dues you pay to support them. 47 Friedman wrote in the letter of April 19, 1965: When you vote , please remember that only . . . CONTINUING BUSINESS assures STEADY WORK . . . and guarantees JOB SECURITY . .. NOT A UNION CONTRACT. 48 Friedman testified that he told the employees : . . . our sole survival depends on flexibility .. and if the union would' come in I would lose it. Friedman wrote in the April 23, 1965, letter: - There is no need for you to pay dues, initiation fees, assessments, fines, to suffer lost wages due to strikes, , or surrender your rights as'individuals . [Emphasis supplied.l In the April 28, 1965, letter Friedman wrote : In previous letters we pointed out in PLAIN FACTS why we believe you don't need this union, and just how we feel ,about the union . . . . 90 From Friedman's speech to employees. 51 Friedman wrote in the April 19, 1965, letter: , I sincerely believe that any big time union endeavoring to'interfere with the relation- ship that has always existed "between all of us here will only result -in chaos and confusion. " 1 ' ' 1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statement of their share in the Jefferson Wire and Cable Corporation Employees' Profit-Sharing Fund and posted a notice announcing its "first contribution" to the Profit-Sharing Fund. It is this latter conduct of the Respondent which the General Counsel and the Charging Party assign as interference with the election conducted on, April 30, 1965, and as a violation of Section 8(a)(1) of the Act. I agree. The Jefferson Wire and Cable Corporation Employees' Profit-Sharing Trust, dated April 1, 1964, was acknowledged on July 29, 1964, and was approved by the Treasury Department, Internal Revenue Service by letter dated October 19, 1964. The Trust Agreement sets April 1, 1964, as the effective date of the Plan. Friedman explained that the Plan was first initiated in order that he could give the Respondent's employees "something that they would be interested to stay with the company." According to Friedman early in 1964, he met with the Respondent's employees and said that he was "working on instituting a profit sharing plan" which he would try to sell to his partners. After the Profit-Sharing Plan was put into effect, Fried- man again met with the employees and told them that the Plan was in effect and that a token amount of $500 had been deposited. Friedman also outlined "the workings of the plan" and "mentioned that [the Respondent's] fiscal year [ended] on March 31, 1965, at which time a substantial sum [would] be deposited to this plan for distribution to the people and the more profit the company [would] be able to make the more the share deposit should be." According to Friedman he also mentioned that in the event the Union was selected bargaining representative and the Respondent "after negotiating with the union could be forced to contribute to any fund the union might require" employees who participated in the Respond- ent's Profit-Sharing Plan "would not participate in anything the union might force on [the Respondent] or vice versa." 52 Friedman advised the employees that a copy of the Plan would be available for the employees' inspection in the Respondent's office. According to employee James Capuano, whose testimony is credited in this respect, Friedman also explained to the employees that the Respondent's contributions to the fund were discretionary and "if they expanded they didn't have to put no money in." 53 51 The Plan provided among other things that "any Participating Employee, who shall become a member of, and/or shall be represented by, a labor organization which receives contributions from the Company to its welfare, disability or pension plan shall not con- tinue as a Participating Employee," and that "such employee shall no longer be a Par- ticipating Employee and his rights under this Agreement shall be determined as though his continuous service in the employ of the Company had terminated." The foregoing language of the, Plan forecloses participation in the Plan by employees who chose a union bargaining representative, unless the union bargaining representative accepts the Respondent's Profit-Sharing Plan and forgoes the institution of "its welfare, disability or pension plan," or other proposed plan Thus the Union's intentions in respect to the Respondent's Plan becomes a force an important campaign issue' To foist upon the employees the choice between continued participation in the Plan and their selection of a union, as denoted in the Plan, has an inherent tendency to discourage employees from choosing a union since an uncertainty is created as to what may happen to their present and future interests in the fund Friedman's declarations reminding the Respondent's employees that "whoever would participate in this plan would not participate in anything that the union might force [on the Respondent] or vice versa," emphasized the hazards involved in choosing the Union as a bargaining agent. In coercive effect this provision in the Plan is no different from that struck down by the Board in Dura Corpora- tion, 156 NLRB 285. See also Melville Confections, Inc. v. N.L.R.B., 327 F.2d 689 (C.A. 7), cert denied 377 U.S. 933. 53 The Plan provides: - The amount of each fiscal year's contribution shall be determined by the Board of Directors in its sole discretion . . . . The company shall also be under no obligation to make any contribution whatsoever to the Trust, or to make a normal contribution to the Trust, if, in the fiscal year of such contribution, the Company wishes to use its profits , or other assets for business expansion, for the purchase or repair of capital equipment or for the construction or repair of buildings ^ , JEFFERSON WIRE AND CABLE CORP., 1403 After the meeting the, Respondent distributed a pamphlet entitled. "Outline of the Jefferson Wire and Cable Corporation Employees' Profit-Sharing Trust." 54 In August 1964, Clifford Show and Charles Plante were chosen as members of "The Profit-Sharing Trust Committee" at an employees' meeting. Other members were Emil Eisenberg, president of the Respondent, Michael Friedman, and Martin Fisher, a supervisor. Friedman testified that in January 1965, he again called a meeting of the employ- ees because he was "dissatisfied with the performance of certain departments." Among other things he said that the better the profit achieved the more the employ- ees would get out of the profit-sharing plan. Friedman remarked to the employees, "wait and see come March 31st there will be a substantial sum of money con- tributed and it will depend on the performance if that sum is big or small because the better you do and the less scrap and the less downtime the better the contri- bution will be." By letter dated Maich 8, 1965, the Respondent's attorneys advised the Respond- ent that it would be necessary for the Respondent to determine the amount it wishd to contribute to the Profit-Sharing Trust for the fiscal year ending March 31, 1965, and "hold a corporate meeting authorizing such payment before March 31, 1965.1155 On March 11, 1965, a meeting of the Committee was held in the Respondent's offices at which a representative of the Trustee, The Mechanics National Bank of Worcester, explained the manner in which the trust funds would be invested and handled by the Bank. Employees Snow and Plante were present. On March 18, 1965, the Respondent by action of the Board of Directors author- ized the payment of $12,000 to the Trustee as the Respondent's contribution to the tiust fund for the fiscal year ending March 31, 1965. On April 16, Friedman conversed by telephone with Clarence Burley, assistant trust officer of the Mechanics National Bank of Worcester, about the preparation of individual emplo} ee participation statements. Fiiedman asked Burley "to pre- pare the statements for the individuals and to deliver them to him " Burley explained to Friedman that he would need "the list of participants, the dates on which they were employed and their compensation for the year" in order to make the calculations. Friedman replied that he would send the balance of the funds and the information and "he would appreciate having [the Bank] put them through between then and April 28th." Friedman said that he wanted the state- ments by April 28 because there "was to be a union election on the 30th " 56 By letter dated April 16, 1965, the Respondent transmitted its check for $12,000 to the Trustee together with the list of eligible employees. The letter included, "I will 64 Among other things the pamphlet informed the employees: The right is reserved, however, to terminate the Plan or suspend contribution at any time [and] The Company will make yearly contributions The amount of each year s contribution is to come from net profit of the Company and the size of the contribu- tion is to be determined each year by the Board of Directors of the Company The Company shall be under no obligation to make any contribution, or to make a normal contribution if, in the fiscal year of such contribution, the Company wishes to use' its profits for business expansion for the purchase of capital equipment or the con- struction of new buildings It is contemplated that a substantial additional conribution (sic) for the fiscal year ending March 31, 1965 will be made when the Internal Revenue Service approves the plan, and when the Company is able to determine its profit for that fiscal year 5 Attorney Burton Chandler, an expert in the field of Profit-Sharing Trust law,'testified that a commitment of the Respondent's contribution to the Trust Fund must have been made prior to March 31, 1965, in order that the Respondent would not have lost the bene- fit of the income tax deduction for the fiscal year ending on such date. as Friedman's version was as follows : I asked, Mr. Burley, I asked him how long this whole procedure will take and lie said it shouldn't take long I should have it back before the 28th I said 'that is swell, on the 30th we have, an election' . . . I said a lot of people are expecting this distribution because they have been told time and time again that after March 31st, which is our fiscal year and they all know this and they are expecting it. Where there is a confiictgbetween the testimony of Burley and Friedman, Burley's testimony is credited. ' 1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD look forward to receiving the individual statements sometime between now and April 28." - Burley testified that the Trustee received the contribution from the Respondent on April 20, 1965, and calculated the allocations for the individual shares on April 22, 1965. On April 26, 1965, the Trustee supplied the Respondent with the allocation statement together with a separate statement of each participant's share in the Trust Fund as of March 31, 1965. These statements were mailed by the Respondent to the employee participants on April 27, 1965.57 Friedman explained that the reason he mailed the statements prior to the election was because it had been "talked about so often . . . and promised to the people and everybody was expecting it and everybody was asking when and how much and [he] just wanted to get it out as long as [he] had it ... . Attorney Burton Chandler, the expert referred to above, testified that the Respondent became entitled to the income tax deduction upon the payment of the commitment, if such commitment was paid prior to the filing of its income tax returns for the fiscal year ending March 31, 1965. Chandler said that the Re- spondent was entitled to at least a 21/2-month period after March 31, 1965, in which to file its income tax returns. Thus had the Respondent paid the commit- ment after April 30, 1965, the day of the election, and prior to filing its income tax returns, it would have been entitled to the income tax deduction. Upon the payment of the commitment any obligation of the Respondent to the Trust Fund ceased and the Trustee became obligated to calculate the allocations. Neither the Respondent nor the Trustee was required to notify the participants of the allocations, but according to Chandler "as a matter of practice in every trust of this nature the bank automatically sends this material out to the individuals or the company." Friedman testified that during the preelection employee meetings he discussed the benefits which the Respondent was giving, including the Profit-Sharing Plan. Friedman informed the employees that if the Union prevailed and the Respondent was forced to institute a union plan for retirement or pension, employees who would be covered by the union plan "would not be eligible under [the Respond- ent's] profit sharing plan" and there would be no duplications. Employee Warren Snow testified that Friedman, referring to the profit-sharing plan, said at the pre- election meetings that "the people would be surprised as to how much they would receive when the statements came out." James Capuano testified to the same effect. Capuano also said that Friedman remarked that the employees would be "receiving the cerfificates shortly." The institution of the Profit-Sharing Plan following the unsuccessful attempt of the Steel Workers to organize the Respondent's plant carried with it a strong sug- gestion of the kind of working conditions and treatment which the employees could expect without the intervention of a union, and which would render the intervention of a union unnecessary. Such suggestion was accentuated by the Respondent's reference to the voluntary character of the Plan, and its lack of obli- gation to make contributions. Moreover it was pointed out that a continuation of the Plan for union represented employees was incompatible with the institution of a union negotiated "welfare disability or pension plan." 58 57 The following note was enclosed with the statements : We are pleased to enclose the first Bank Statement showing `your Share of Com- pany's Contribution' to your Profit Sharing Fund as of March 31, 1965 We are very proud of this achievement. Being a small company, it was not easy to accomplish this, yet we did it voluntarily without any outside interference One thing is clear, with your help and support , this can grow in a substantial retirement fund for you . [Emphasis supplied.] About the same time the following notice appeared on the Respondent ' s bulletin board. We were happy to-day to be able to give our eligible employees our first contribution to your Profit Sharing Plan. With your help and support, this can continue to grow into a substantial Retire- ment Fund for you . We hope that next year there will be more eligible employees to participate in this plan. As you know, this plan was put in by the Company voluntarily without any outside interference, as part of its continuing program to improve Your working conditions. [Emphasis supplied.] 58 Employee Capuano derived from Friedman's remarks, "that if the union got in and he was forced to put money into a retirement fund for employees the profit sharing plan would be cancelled." JEFFERSON WIRE AND CABLE CORP. 1405 Throughout the election- campaign period the Respondent reiterated the thought that the Profit-Sharing Plan represented the fine treatment which the employees could expect if a union were not chosen to intervene between the employees and the Respondent. The Respondent urged that, the employees "place [their] confi- dence in the Company rather than in outside union representatives." The Respond- ent finally clinched the idea by announcing the allocations on the eve of the elec- tion with the sophisticated observation "we did it without any outside interference." In this course of conduct the insidious and thinly veiled nature of the Respondent's coercion is apparent. The Respondent concedes that it was a matter of great concern to the employees as to whether the Respondent would make a contribution to the Trust Fund for the fiscal year ending March 31, 1965. Friedman observed that "everybody was expecting it and everybody was asking when and how much." Nevertheless, the announcement of "our first contribution to your Profit Sharing Plan" was.withheld until April 28, 2 days before the election, although almost 6 weeks earlier on March 18, 1965, the Respondent obligated itself to make a $12,000 payment to the Fund. As early as January 1965, Friedman told the employees, "come March 31, there will be a substantial sum of money contributed." But "come March 31" the Respondent failed to announce that it had committed itself to make a contribution to the plan for the fiscal year ending March 31, 1965; except for ambiguous innu- endos the employees were kept in suspense 59 as to the true intentions of the Re- spondent until April 28, 1965. Friedman explained that the reasons he chose April 28 for the day of the announcement were because the contribution to the Fund had been "talked about," "promised to the people," "everybody was expecting it" and "asking when." These alleged reasons which motivated the Respondent to act on April 28 would have been equally as valid on March 18 and, had the Respondent so willed, the announcement of the allocations could have been pub- lished by March 24 since the Trustee after receiving the necessary information from the Respondent on April 20, 1965, supplied the statements within 6 days, on April 26, 1965. The- reasons for Friedman's choice of April 28 as the date for the announcement do not have a convincing ring. Especially is this true in view of Burley's credited testimony that Friedman wanted the allocation statements by April 28 because there "was to be a union election on the 30th." Moreover, the record is barren of any credible proof that the timing of the announcement was prompted by factors other than the pendency of the election. By withholding publication of the Respondent's payment into the Fund until April 28 the Respondent was enabled to derive maximum advantage from the happening of an event which verified and fulfilled the Respondent's often repeated claims of trustworthiness,60 patrimony, and voluntary beneficence as contrasted with the hazards of choosing a union. The Respondent's publication of its contribution to the Fund on April 28 was calculated to becloud the employee's judgment and "interfere with his thoughful weighing of the issues involved." Cf. Livingston Shirt Corporation, 107 NLRB 400. Moreover, the Respondent deliberately chose a time for its announcement when the effect could not have been neutralized by the impact of other media of employee persuasion because of the lack of time for a union response between the announcement and the election. Thus, the Respondent's announcement was timed to avoid a cooling off period between the time of the announcement and the elec- tion and to render the Union helpless to countei any employee defections caused by the Respondent's grant of benefits. Its announcement of profit-sharing benefits gave the appearance of beneficent concern for its employees at a time when that concern could be best translated into "No Union" votes and was calculated to influence the employees in their choice of a collective-bargaining agent. The mes- sage was inescapable; the Respondent was demonstrating to its employees that 59 Employee Capuano testified that the Respondent was bringing in new equipment during this period. "Friedman wrote the employees on April 19, 1965, 11 days before the election, ' I hope that when the time comes you will place your confidence in the Company . . . [Em- phasis supplied.] ; again on April 23, 1965, 7 days before the election Friedman wrote, "When we can pay more, we will. This is not a mere promise-that is our proven policy" , and "No labor Union can give you a wage increase or benefits. In fact, they cannot give you anything" On April 28, 2 days before the election, and the day, upon which the Respondent announced its contribution to the Fund, Friedman wrote to the employees, "IN WHOM WILL YOU PLACE YOUR TRUST';", . . 1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resort to self-organization was unnecessary. 61 Implicit in the Respondent's conduct was the strong suggestion that its liberal labor policy which manifested itself in the allocation of profit-sharing shares on the eve of the election would be lost if the Respondent's plant became unionized. Such conduct was coercive. Cf. Peter J. Schweitzer, Incorporated v. N.L.R.B., 144 F.2d 520, 522 (C.A.D.C.). Since it was the intent of the Respondent to convey to Respondent's employees "the belief that there was no necessity for them to support the union in the coming election" such- conduct was violative of Section 8(a)(1) of the Act. Hermann Equipment Manufacturing Co., Inc., 156 NLRB 716. Moreover, such conduct was in violation of Section 8(a) (1) in that "it tends to interfere with the exercise by employees of their rights under the Act." Id., footnote 3. The manner in which the Respondent handled the Profit- Sharing Plan as above detailed was also in violation of Section 8(a)(1) of the Act within the meaning of N.L.R.B. v. Exchange Parts Co., 375 U.S. 405, and constituted interference with the election. Section 8(a)(1) prohibits "conduct immediately favorable to employees [as in this case] which is undertaken with the express purpose of impinging upon their freedom of choice for or against unionization and is reasonably calculated to have ,that effect." It is also clear that the Respondent's subsequent conduct adds support to the finding heretofore made that on March 8, 1965, the Respondent violated Section 8(a)(5) of the Act. Its conduct after the filing of the petition for the representa- tion election was calculated to destroy the conditions needed in order for a fair election to be held. "When an employer's failure to accord recognition to a union which represents a majority of his employees is inspired, not by a genuine doubt of the union which represents a majority of his employees is inspired, not by a genuine doubt of the union's right to represent the employees, but by an intention to repu- diate the concept of collective bargaining or by a design to thwart unionization the employer is held to be in violation of Section 8(a)(5) of the Act." Engineers & Fabricators, Inc, 156 NLRB 919. I am persuaded that the Respondent had completely iejected the collective-bargaining principle and refused to recognize the Union in order to gain time within which to undermine the Union and dissipate its majority. The Respondent by its own conduct made the holding of a free election impos- sible by the utilization of the Profit-Sharing Plan as a means of dissipating the Union's strength and thereby did unlawfully interfere with the conduct of the election held on April 30, 1965. "Conduct violative of Section 8(a)(1) is a fortiori conduct which interferes with the exercise of free choice in an election." Dal-Tex Optical Company, Inc., 137 NLRB 1782, 1786. E. Unilateral changes in working conditions It stands uncontested in the record that on or about September 18, 1965, the Respondent put into effect a 5-cent-an -hour wage increase for the second shift and a 10-cent-an-hour wage increase for the third shift as a shift differential , and about the same date invitations to the Respondent 's Christmas party were extended for the first time to production and maintenance employees. Both innovations were put in effect unilaterally . Since it has been found that as of March 8, 1965, and thereafter 62 the Union was the collective -bargaining representative of the Respondent's employees , the Respondent's unilateral action breached its obligation to bargain with the Union and was in violation of Section 8(a)(5) of the Act. N.L.R.B. v. Benne Katz , d/b/a Williamsburg Steel Products Co., 369 U.S. 736. N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations set forth in section I, above, have a close, intimate, 61 N.L R.B. v. Bailey, supra, 279, states : An employer interferes with the right to self-organization when he emphasizes to his employees that there is no necessity for a collective bargaining agent. 6 In no event could the employer discredit a duly designated bargaining agent by refus- ing to bargain with it and then avail himself of the bargaining agent's loss of majority which has thus been brought about by the employer's own conduct. N.L R B. v. George P. Pilling h Son Co., 119 F.2d 32 , 39 (C.A. 3). JEFFERSON WIRE AND CABLE CORP. 1407 and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY e^ It having, been found that the Respondent has engaged in certain unfair labor practices it-is recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of the Act. 2. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed to them by Section 7 of the Act, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By the commission of the aforesaid unfair labor practices the Respondent unlawfully interfered with the representation election conducted on April 30, 1965. 5. All production and maintenance employees of the Employer engaged at its Worcester, Massachusetts, plant, including shipping room employees, but excluding office clerical employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. 6. By refusing on and since March 8, 1965, to bargain with the Union as the exclusive bargaining agent of employees in the appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (5), of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from' (a) Interrogating employees as to their union sympathies or activities, prom- ising or granting benefits to employees for the purpose of dissuading them from supporting a union and fostering, supporting, and rewarding employees' defection from the Union, however nothing herein shall be construed as requiring Respondent to vary or abandon any economic benefits or any term or condition of employment which it may have heretofore established. (b) Changing unilaterally working conditions of its employees. (c) Refusing to recognize and bargain collectively with International Brother- hood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO. (d) In any like or similar manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organi- zations, to join or assist International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers and Helpers, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such -activities except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request bargain collectively with the above-named Union as the exclusive representative of the employees in the unit set forth above with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached embody the same in a signed- agreement. 1408 DECISIONS OF` NATIONAL LABOR' RELATIONS BOARD (b) Post at its Worcester, Massachusetts, plant, copies of the attached notice marked "Appendix." 63 Copies of said notice to be furnished by the Regional Director for Region 1, after being duly signed by Respondent 's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said- notices are not altered, defaced, or covered by any other material. - (c) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Recommended Order, what steps the Respondent has taken to comply herewith.64 IT IS RECOMMENDED that the election heretofore held on April 30, 1965, be vacated and set aside and the petition dismissed. IT Is FURTHER RECOMMENDED that the complaint be dismissed insofar as it alleges -violations of the Act other than those found in this Decision.65 a' In the event that this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United Statee Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 0 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read : "Notify said Regional Director, In writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith " Olt appearing that Respondent's letter request dated February 24, 1966, "to have the record in the above matter corrected to include therein General Counsel Harvey's state- ment made at the beginning of the bearing that lie had no newly discovered evidence, and Respondent's request for time to file request with Board in Washington for special leave to appeal Trial Examiner's ruling on the relitigation of the status of employees found to have been non-supervisory by the Regional Director in his Decision and Direction of Election . . . ." is not well taken, it Is hereby denied APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify our employees that: WE WILL/upon request bargain collectively in good faith with International Brotherhood of Boilermakers , Iron Shipbuilders, Blacksmiths , Forgers and Helpers, AFL-CIO , as the exclusive bargaining representative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, and other conditions of employment and if an understanding is reached , WE WILL embody such understanding in a signed contract. The bargaining unit is: All production and maintenance employees of the employer engaged at its Worcester, Massachusetts , plant, including shipping room employees, but excluding office clerical employees , professional employees, guards, and supervisors as defined in the Act. WE WILL NOT unlawfully question our employees concerning their union activities or promise or grant benefits to them in an effort to get them not to support a union or interteic in their determination whether to join or remain union members or in any other manner interfere with , restrain, or coerce them in the exercise of those rights , provided however, that nothing herein requires us to vary or abandon any economic benefit which has heretofore been established. WE WILL NOT unilaterally make changes in the working conditions of our employees. WE WILL NOT in any other manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations , to join or assist the above-named or any other labor organiza- tion, to bargain collectively through representatives of their own choosing or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities THE WOOD, WIRE & METAL LATHERS LOCAL NO. 68 1409 except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8(a)(3) of the National Labor Relations Act, as amended. All our employees are free to become or remain or to refrain from becoming or remaining members in good standing of International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths , Forgers and Helpers, AFL-CIO, or any other labor organization. JEFFERSON WIRE AND CABLE CORP., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Bos- ton Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108, Telephone 223-3358. The Wood, Wire and Metal Lathers International Union, Local Union No. 68, AFL-CIO and Drywall Steel Erectors, Inc. and Carpenters District Council of Denver and Vicinity, an affiliate of United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 27-CD-68. June 27,1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of the National Labor Relations Act, as amended, following it charge filed by Drywall Steel Erectors, Inc., herein referred to as Steel Erectors, or the Employer, alleging that The Wood, Wire and Metal Lathers International Union, Local Union No. 68, AFL-CIO, herein referred to as the Lathers or the Respondent, had induced and encouraged employees of Steel Erectors to strike for the purpose of forcing or requiring the Employer to assign particular work to members of the Respondent rather than to members of Carpenters District Council of Denver and Vicinity, an affiliate of Union Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein referred to as Carpenters. A hearing was held before Hearing Officer J. Donald Meyer on October 19, 20, and 21, 1965. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs were filed by the Employer, Respondent, and Carpenters and have been duly considered. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. 159 NLRB No. 115. 243-084-67-vol . 159-90